Government of India Act 1935| Salient Features, and Criticism of Government of India Act 1935
The Government of Lord Willingdon look recourse to extremely repressive measures to suppress the spirit of the Indian nationalists. Hundreds of peasants in the U.P and many Congressmen, including Jawaharlal Nehru, Sherwani and Purushottamdas Tandon was imprisoned. In Bengal, thousands of people were arrested and detained on flimsy grounds without any trial. The Government issued the Emergency Power Ordinance in the U.P on 14th December, 1931 and three new ordinances were promulgated in the N.W.F.P on 24th December to carry on the suppression with full vigor.
Ghandhiji protested against these illegal measures and the region of terror, in a telegram to the Viceroy. But the Private Secretary of the Viceroy justified the Government measures. Ghandhiji then sought an interview with Willingdon and declared that he would launch a Civil Disobedience Movement if no satisfactory reply was given by the Viceroy. The Viceroy refused to grant the interview under the threat of Civil Disobedience.
Four new ordinances, namely, the Emergency Powers Ordinance, Unlawful Instigation Ordinance, Unlawful Association Ordinance and Prevention of Molestation and Boycott Ordinance, were issued by the Government on 4th January, 1932. These ordinances were aimed at ruthlessly suppressing the Indian people. Even the Secretary of State for India, Sir Samuel Hoare, admitted that these were “very drastic and sever”.
The government extremely severe measures to crush the movement even before it was launched. The extraordinary powers were fully used to destroy and confiscate the property of the people and give them severe punishment. Congress offices and Ashrams were taken possession of and the police took resource to lathi-charges to disperse the crowds assembled to execute the programme of Civil Disobedience Movement.
The repressive measures of the Government could not prevent the Civil Disobedience Movement. Thousands of people organised meetings and demonstrations. Liquor shops and shops dealing with foreign cloths were picketed. People refused to pay taxes. Salt was manufactured against the Government order banning such manufacture. National flags were hoisted on several government building. The Congress held its session in Chandni Chowk, Delhi, despite government restrictions and reiterated the “completed Independence” resolution. In the words of Subhash Chandra Bose, “The activities in 1932 did not compare unfavorably with those of 1930.
The Third Round Table Conference took place in London, while Mahatma Gandhi was organising a massive civil disobedience movement in India, after returning from the Second Round Table Conference. The discussion at the Third Round Table Conference resulted in a White Paper in 1934 containing proposals incorporated in a Bill and presented to the Parliament for passage. This came to be known as the Government of India Act of 1935 and was passed by the British Parliament. The 1935 Act was the second installment of constitutional reforms passed by British Parliament for implementing the ideal of responsible government in India. The Act of 1935 envisaged a federal form of government and as such was a radical departure from its predecessors. It granted provinces to the Centre.
Salient features of the Act of 1935
The Act of 1935 was quite a lengthy and detailed document. It consisted of 321 sections and 10 schedules. It partly came into operation in 1936 when the general elections in the country were held on the lines prescribed by it. It was fully enforced in April 1937. The Act was largely disappointing because it did not hold out assurance about granting Dominion Status, not did it consider sympathetically the feelings and urges of politically conscious Indian. The New Constitution also said nothing regarding the fundamental rights of the people. It perpetuated the sovereignty of the British Parliament over India. In spite of the above-mentioned drawbacks, the new Act had its own significance. It marked a second milestone on the road to full responsible government, the first being the Act of 1919. The new glaring features of the Act were the suggestion to form Federation consisting of the British India and the Indian States, autonomy in the Provinces and a partly responsible government or dyarchy at the Centre.
1. Provincial Autonomy
One redeeming feature of the new Act was that it marked the beginning of the Provincial Autonomy. It was definitely an advance on the Act of 1919. The Provinces for the first time got a measure of democratic government. The system of dyarchy or the division of subjects into ‘Transferred’ and ‘Reserved’ was done away with. All the subjects were transferred to the charge of ministers. The hold of the Centre over the provincial subjects was also considerably reduced. This, however, does not mean that the Act of 1935 established a full-fledged responsible Government in the Provinces. The Ministers were not absolutely free in matter of running their departments. The Governors continued to possess a set of overriding powers although such powers were not exercised very often.
2. All India Federation
The Act provided for an All-India Federation comprising the British Indian Provinces and the Indian States. The constituent units of the Federation were 11 Provinces, 6 Chief-Commissioner’s Provinces and all those states which agreed to join it. The States were absolutely free to join or not to join the proposed Federation. At the time of joining it, the ruler of that State was required to sign an Instrument of Accession, mentioning therein the extent to which it consented to surrender its authority to the Federal Government. The ruler was, however, authorised to extend the scope of Federal authority in respect of his State by executing another Instrument. Every unit enjoyed full autonomy in its internal affairs. The Act also provided for the setting up of a Federal Court to settle disputes between the Federal Government and the Units.
3. Dyarchy at the Centre
The Act of 1935 abolished dyarchy at the Provincial level and introduced it at the Centre. The Federal subjects were divided into two categories the Reserved and Transferred. The reserved list included Defense, External affairs, Ecclesiastical affairs and Tribal Areas. These were to be administered by the Governor-General with the help of three councillors to be appointed by him.
For the administration of Transferred subjects the Governor-General was to appoint a Council of Ministers whose number could not exceed 10. The Ministry was to consist of the persons who commanded the confidence of the legislature. By a subsidiary Instrument of Instructions the Governor-General was also empowered to include in his Ministry the representatives of the Indian States as well as the minority communities. The Ministry was collectively responsible to the Federal Legislature. The Governor-General remained over all incharge of both the Reserved and Transferred subjects. He was also responsible for the co-ordination of work between the two wings and for encouraging joint deliberations between the councillors and the Ministers.
4. Safeguards and Reservations
Another distinctive trait of the new Act was the provision of elaborate safeguards and protective armours for the minorities. The reason given for it was that the minorities needed protection from the dominance of the majority community. The nationalists, however, saw no sense in this argument. They know that the so-called provisions in the Act relating to the safeguards were merely a trick to empower the Governor-General and the Governors to override the Ministers and legislators. In fact the safeguards amounted to vital reduction in the powers of the ministers.
5. Supremacy of the Parliament
The Act of 1935 was a rigid one. No Indian legislature whether Federal or provisional was authorised to modify or amend it. The British Government alone was given the authority to make changes in it. The Indian legislature could at the most pray for a constitutional change by submitting a resolution to Majesty’s Government. Thus, the new constitution was in no way an Indian constitution, it was an imposition on India by the British parliament.
6. Federal Court
The Act also provided for the establishment of Federal Court to settler disputes arising among the units themselves and also between a unit and the Federal Government. One of the functions was to interpret the controversial clauses of the Act. It was however, not the final court of appeal. In certain circumstances, the appeal could be made to the Privy Council.
7. Increase in the Size of Legislatures and Extension of Franchise
Another highlight of the Act was the extension of franchise. Nearly 10 percent of the total population got the right to vote. The Act not only retained communal electorate but also extended it. This was a calculated blow to the feeling of oneness in the country, the strength of the Council of State was increased to 260 and that of the Legislative Assembly to 375. The Federal Legislature and six out of eleven Provincial legislature became bicameral.
8. Division of Subject
Under the Act of 1935, the subjects for administrative purpose were catalogued into three lists the Federal list, the Provincial list and the Concurrent list. The Federal list included 49 subjects, the Provincial list 54 and the Concurrent list 36. The subjects which were of all-India interest and demanded uniform treatment were put in the Federal list. These subjects were Armed Forces, Currency and Coinage, Posts and Telegraphs, Railways, Central Services, External Affairs, Wireless, Customs etc . Only the Federal Legislature could make laws on the Federal subjects.
Subjects of mainly of local interest were placed the Provincial list and were wholly within the jurisdiction of the Provincial Legislatures for the purpose of legislation. These subjects were Public Order, Education, Local Self-Government, Public Health, Land Revenue, Forests, Mining and Fisheries and others.
The third list known as the Concurrent list, and which contained 36 items, included subjects which were primarily Provincial interest but at the same time required uniformity of treatment all over the country. Hence, the Act authorised both the Federal and Provincial Legislatures to pass laws on those subjects. In the event of a conflict, the Federal law was to prevail.
The authors of the Constitution had made the lists as exhaustive and complete a possible. But still there was the possibility of some powers left out. The Indian delegates at the conference could not decide whether the residuary powers were to be exercised by the Federal or the Provincial Legislature. In order to resolve this point of conflict, the Constitution authorised the GovernorGeneral to allocate in his discretion the right to legislate on any subject, not included in the lists, either the Centre or the province.
No new Preamble was affixed to the Act of 1935 because the new Constitution did not register any change in the British attitudes towards India’s sentiments. The Preamble of the Act of 1919 was, however, added to the new Act so as to appease the Indians that British Government still was committed to its promise of giving Dominion status to India.
10. Abolition of India Council
The Indian had always been very critical of the India Council. The reasons for the bitterness were many. The new Act abolished India Council and provided for the appointment by the Secretary of State and his team of Advisers whose number was not to be less than 3 and nor more than 65 . With the introduction of Provincial autonomy the control of Secretary of State over the Transferred subjects was greatly diminished. His control however, remained intact over the discretionary powers of the Governor-General and the Governors.
11. Retention of Communal Electorate
Although the principle of communal electorate was in the interests of the nation, yet in order to weaken the growing spirit of nationalism, the Act of 1935 not only retained communal electorate but also enlarged its scope. It granted this wholly concession to the Depressed Classes also. The Muslims got 33 percent of the seats in the Federal Legislature although their number was much less than one-third of the total population of British India. Even the workers and women got separate representation although they had not asked for it.
12. Burma, Berar and Aden
Another important features of the new Constitution was the Burma was separated from India and Aden was surrendered to British Colonial Office. Berar, although it remained formally a part of Hyderabad State, was for administrative purposes, merged with the Central Provinces.
13. Introduction of bicameralism
It introduced bicameralism in six out of eleven provinces. Thus, the legislatures of Bengal, Bombay, Bihar, Assam and the United Provinces were made bicameral consisting of a legislative council (upper house) and a legislative assembly (lower house). However, many restrictions were placed on them.
Criticism of the government of India Act, 1935:
Prof. Coupland described the Act of 1935 as a “a great achievement of constructive political thought”. In his opinion ‘it made possible the transference of Indian destiny from British to Indian destiny from British to Indian hands’. Indian, however, felt otherwise. Even the impartial British statesmen like Mr. Atlee admitted that the new keynote of the Act was mistrust. It was disappointing for it did not even made mention of Dominion status. Every political party of India condemned the new draft for one reason or another. Mr. Jinnah, the leader of Muslim League, described it as thoroughly rotten fundamentally bad and totally unacceptable.
According to C. Rajagopalachari, “The new Constitution is worse than a dyarchy”. Pt. Madan Mohan Malaviya remarked, “The new act has been thrust upon us. It has a somewhat democratic appearance outwardly, but it is absolutely hollow from inside”.
Pandit Jawaharlal Nehru condemned it as “a charter of slavery”. It was a sort of machine with strong brakes and not engine”. Thus, the act received with a chorus of condemnation from all sides.
Criticism of Government of India Act 1935
1. Discretionary Powers of Governors and Governor-General
The new Act armed the Governors and Governor-General with tremendous discretionary powers and thus reduced Provincial Autonomy to a farce. In a way the Act made the Governors so powerful that they could play the dictator if they liked. The only thing that can be said in favour of the Act is that it slightly enlarged the control of the Indian legislatures over financial matters but on the whole the final powers remained vested in the hands of Englishmen. The Governors and the Governor-General continued to have the last word in the preparation of budget and allocation of funds to various departments.
The Act invested the Governors and Governor-General with a set of special responsibilities. These were in the nature of overriding powers. The Law portfolio was in the hands of a responsible Minister but prevention of any menace to the peace and tranquility in the Province came under the special responsibility of the Governor. The excess of special responsibilities was in fact a handy weapon to crush the revolutionary activities and Congress movements. Under this cover even the civil liberties could also be denied at any time.
Dr. Rajendra Prasad in 1934 aptly remarked: “It would be mere camouflage and a fraud to declare that such and such subjects had been transferred when the responsibilities with regard to them were reserved with the British. The wide powers vested in the Governor, Governor-General and also in the Crown and the Parliament negatived the very essence of the Provincial autonomy- the great prize awarded to the Indians”.
2. Defective federation
The proposed formation of the Federation was also fundamentally defective. Entry into the Federation was compulsory for the Provinces but voluntary for the Princely States. The Federation was thus going to be a jumble of dissimilar units. There was a world of difference in regard to population, area, political importance and status between the Provinces and the States. Whereas the British Provinces were partly autonomous units, the States were still under the autocratic rule of the Princes. Yoking together of such heterogeneous units under one federation was highly absurd.
The second absurdity was that the States were to be represented in the Federal Legislature not by the elected representatives of the States but by the nominees of the native rulers. Thirdly, the wide range of powers vested in the Governor-General was a vital flaw in the proposed Federation. Such a thing is opposed to the spirit of a Federation.
3. Extension of Communal Electorate System
The Act of 1935 received a chorus of criticism for one or the other reason. It not only retained the system of Communal Electorate but also extended its application in the case of Harijans, labour and women. The sinister motive behind it was to separate the Harijans from the Hindu community and poison the political atmosphere with the evil of casteism and sectionalism.
The Act of 1935 armed the Governor-General and the Governor with far-reaching powers in the name of defending the minorities against the tyranny of the Hindus. The minorities naturally began to feel greatful to the rulers for the protection of their interests. They became their allies in arresting the growth of nationalism. The British diplomacy always used the Indian States, the minorities and the services as tools against the Congress.
5. Refusal to Grant Right to Self-determination
Another flaw in the Constitution was its refusal to grant the right of self-determination to the Indians. The Indians had no say in making or amendment of a Constitution for themselves. The new Constitution, it was but natural could not get the approval and co-operation of Indians because it was not of their making. It was rather thrust upon them by the British Parliament which was also to be the judge of the eligibility or otherwise of the Indians for being given Dominion Status. The right to amend the Constitution was given not to the Indian-Legislature but to the Crown. The Indians were simply given the toy of Provincial Autonomy to play with. They received nothing substantial to feel contented. The British Parliament and the Secretary of State for India continued to be the virtual rulers of the country till the year 1947. There was, as such, nothing surprising if the Act of 1935 was received with disgust and resentment.
6. Federal Court
In a federal system the scope of authority of the Centre as well as of the federating units is clearly demarcated. As far as possible, the Constitution leaves no occasion for confusion. But there is always the possibility of a dispute arising out of the interpretation of a constitutional clause. It is possible that the Central or a Provincial Government may violate the provision of the Constitution. In order to meet such confusion and check the violation of the Constitution, every federal scheme provides for the establishment of a Federal Court. Till the coming into force of the new Act, India was treated as a unitary Government. Whatever power the Provinces enjoyed were delegated by the Centre. And in the event of any dispute the decision of the Centre prevailed. But in a federal System, nothing is left to the whim of the Centre. Dispute are decided in the light of the dictates of the Constitution. The new Act of 1935 was introduced in the Provinces from April 1, 1937, and hence the Federal Court was also established quite soon. It began to function from 1st October, 1937.
The Act provided a number of safeguards for the judges of the Federal Court. Their age of retirement was sixed at 65. They could be dismissed even earlier on charges of misbehavious or infirmity of mind or body by His Majesty on the recommendation of the Judicial Committee of the Privy Council. Thus, the Judges with regards to their appointment, salaries and dismissal were in no way subject to their authority of the Governor-General or the Federal Legislature.
7. Qualifications of the Judges
A person was considered eligible for appointment as a Judge if the possessed the following qualifications:
Five years’ standing as a judge of a High Court in any Province/ Federated state or Ten years’ standing as a barrister of England or Northern Ireland or Ten years’ standing as a member of the faculty of advocates or Ten years’ standing as a High court pleader.
8. Provincial Autonomy
Perhaps the only heart-warming feature of the Act of 1935 was a new status that it accorded to the provinces. It replaced dyarchi by autonomy. The division of Provincial subjects into Reserved and Transferred as under the Act of 1919 was abolished. The new Act made no mention of Reserved subjects or the Governor’s executive council. The provinces received a new constitutional status. Their scope of authority was clearly demarcated. The extent of Central control over the provinces was considerably restricted. Under the Act of 1919 the Provinces were at the mercy of the Centre. They exercised only such powers as were delegated to them by the Central Government. The Provincial Governments were as such mere agents of the Central authority. The Act of 1935 made a marked advance from the Constitution. They got responsible Government also. Thus their autonomy conveyed double sense. In the first case the Government of the Province got out of the absolute control of the Central Government and received a separate legal authority. Secondly, the provinces got a responsible government, i.e., the power to rule came into the hands of the popular Ministers. The Joint Parliamentary Committee in its report explained the new status of the Provinces as units which have an executive and a legislature having exclusive authority within the Province in a precisely defined sphere, and in that exclusively Provincial sphere, broadly free from control by the Central Government and the Legislature.
The Act made Provision for the establishment of a High Court and provincial service cadre in each Province.
It is to be noted that ‘Dominion Status’, which was promised by the Simon Commission in 1929, was not conferred by the Government of India Act, 1935.